State v. Pester

Supreme Court of Nebraska

October 14, 2016

State of Nebraska, appellee,v.Richard Pester, appellant.

1.Criminal Law: Courts: Appeal and Error. In
an appeal of a criminal case from the county court, the
district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for
error or abuse of discretion.

2.
Courts: Judgments: Appeal and Error. Both
the district court and a higher appellate court generally
review appeals from the county court for error appearing on
the record. When reviewing a judgment for errors appearing on
the record, an appellate court's inquiry is whether the
decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor
unreasonable. But an appellate court independently reviews
questions of law in appeals from the county court.

3.
Judgments: Pleadings: Appeal and Error.
Regarding questions of law presented by a motion to quash, an
appellate court is obligated to reach a conclusion
independent of the determinations reached by the trial court.

4.
Constitutional Law: Search and Seizure: Motions to
Suppress: Appeal and Error. In reviewing a trial
court's ruling on a motion to suppress based on a claimed
violation of the Fourth Amendment, an appellate court applies
a two-part standard of review. Regarding historical facts, an
appellate court reviews the trial court's findings for
clear error, but whether those facts trigger or violate
Fourth Amendment protection is a question of law that an
appellate court reviews independently of the trial
court's determination.

5.
Convictions: Evidence: Appeal and Error. In
reviewing a criminal conviction for a sufficiency of the
evidence claim, whether the evidence is direct,
circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the
evidence, pass [294 Neb. 996] on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.

6.
Constitutional Law: Search and Seizure: Warrantless
Searches: Blood, Breath, and Urine Tests: Arrests. A
warrantless breath test administered as a search incident to
a lawful arrest for driving under the influence does not
violate the Fourth Amendment's prohibition against
unreasonable searches and seizures.

7.
Constitutional Law: Search and Seizure. The
Fourth Amendment to the U.S. Constitution and article I,
§ 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the state.

8.
Arrests: Search and Seizure: Probable Cause.
An arrest constitutes a seizure that must be justified by
probable cause to believe that a suspect has committed or is
committing a crime.

9.
Probable Cause: Words and Phrases. Probable
cause is a flexible, commonsense standard that depends on the
totality of the circumstances.

10.
Probable Cause: Appeal and Error. An
appellate court determines whether probable cause existed
under an objective standard of reasonableness, given the
known facts and circumstances.

11.
Criminal Law: Motor Vehicles: Words and
Phrases. Under Neb. Rev. Stat. § 60-6, 196
(Reissue 2010), being in "actual physical control"
is distinct from "operating" a motor vehicle and is
interpreted broadly to address the risk that a person not yet
operating a motor vehicle might begin operating that vehicle
with very little effort or delay.

Appeal
from the District Court for Scotts Bluff County. Randall L.
Lippstreu, Judge, on appeal thereto from the County Court for
Scotts Bluff County, James M. Worden, Judge.

Richard
Pester appeals the decision of the district court for Scotts
Bluff County in which the court affirmed his convictions
following a jury trial in Scotts Bluff County Court for
driving under the influence (DUI) and refusal to submit to a
chemical test, both second offenses. The county court had
overruled Pester's motion to quash the charge of refusal
to submit to a chemical test; Pester had argued that
criminalizing refusal was a violation of the constitutional
rights to be free of unreasonable searches and seizures. The
county court had also overruled Pester's motion to
suppress evidence obtained as a result of his arrest; Pester
had argued that there was not probable cause to support his
arrest. On appeal, ...

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